Nasser v Roads and Traffic Authority of New South Wales Millstar Holdings Pty Limited v Roads and Traffic Authority of New South Wales

KEY ISSUES: Practice and Procedure :- Application to reopen following close of hearing

LEGISLATION CITED: Land and Environment Court Act 1979 s38(2)

Coulton v Holcombe (1986) 162 CLR 1; De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207; CASES CITED: Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430; Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 ; Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of New South Wales [2005] NSWLEC 419; Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

APPLICANTS P McEwen SC A Pickles SOLICITOR LEGAL REPRESENTATIVES: Allens Arthur Robinson RESPONDENT J Maston SOLICITOR Corrs Chambers Westgarth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

30162 of 2003 Fred Nasser, Michael Nasser & George Nasser v Roads and Traffic Authority of New South Wales

30163 of 2003 Millstar Holdings Pty Limited v Roads and Traffic Authority of New South Wales

JUDGMENT ON NOTICE OF MOTION TO REOPEN 1 Her Honour: I reserved my decision in this matter on 14 December 2006 after several days of hearing. Since doing so I have received the following from the parties:

(i) By consent as between the parties and the Court, the Applicants' Response to the Respondent's Addendum to Respondent's Outline of Submissions, dated 20 December 2005. The Respondent's Addendum was dated 14 December 2005 and was handed up in Court on the last day of the hearing.

(ii) By consent as between the parties, the Respondent's comments on the Applicants' Reply to the Addendum to the Respondent's Outline of Submissions dated 8 February 2006.

(iii) Without consent of the Court or the other party, the Applicants' Correction to the Applicants' Response dated 20 December 2005 to the Respondent's Addendum to the Respondent's Outline of Submissions, dated 8 February 2006.

2 The Roads and Traffic Authority's (RTA) solicitors have filed an identical notice of motion and supporting affidavit in both proceedings seeking to reopen their case to do the following (as clarified in oral submissions by counsel): (i) seek leave to rely on one page of transcript being p 21 from Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430 of proceedings on 19 April 1995; (ii) make the supplementary submission in reply to the Applicants' Response to the Respondent's Addendum to Respondent's Outline of Submissions as amended by the Applicants' Correction of its response dated 8 February 2006 that "The Lalic judgment does not contain detailed calculation of a 7% adjustment for the M7 because that adjustment was common ground and accepted by the Court as such."

3 The application to reopen is opposed and the Applicants further argued that if I grant the application it will seek to reopen its case and adduce further evidence from its valuer.

4 Paragraph 44 of the Corrections to Applicants' Response, dated 8 February 2006, is as follows: In Lalic McClellan CJ acknowledged the need for adjustment for the influence of the M7 [51], his Honour makes no express finding of fact as to the specific percentage increase adjustment on that account. While in his oral testimony in the present proceedings Mr Lunney gave evidence of a 7% adjustment to the Boral sale to reflect the betterment of the M7, there is no sales evidence in the present proceedings to support that finding. In any event the degree of adjustment to the Boral sale can be distinguished from any adjustment that may be applied to the subject land which has different access arrangements to the M7 Motorway. 5 Paragraph 48(iv) of the Corrections to Applicants' Response, dated 8 February 2006, is as follows: Mr Neskovski's evidence in these proceedings was that without detailed analysis of the sale of land between the announcement and implementation of the M5 and then the M7, to attribute a percentage increase for betterment in respect of the M7, remains a guess … When pressed to provide a figure attributable to the M7 alone, Mr Neskovski indicated that 2% increase for betterment would be his best guess, but that caution was required in this assessment.

6 Paragraph 49 of the Corrections to Applicants' Response, dated 8 February 2006, is as follows: In Lalic [52] there is no disclosed base figure in the judgment of $240 per square metre; even if there was a 7% adjustment to that base it does not arrive at $220 per square metre, but rather would be $224 per square metre. Whilst his Honour accepts that an adjustment for betterment is required in relation to the analysis of the Boral sale, his reasons do not disclose the mathematical basis of the adjustment [53]. RTA's case 7 It is argued that the paragraphs of the Applicants' written submissions set out above at par 4 - 6 require correction in the sense that they tell only half the story in relation to the Lalic proceedings. Lalic recognises at [51] that adjustment for the M7 influence is necessary. No specific figure for that adjustment is mentioned in the judgment. When the one page transcript sought to be relied on is read it is clear that there was no need for McClellan J to reach a conclusion on this as the parties' valuers, the same valuers as in these proceedings, had agreed a figure of 7%.

8 There has been no delay in seeking to reopen the case as the need to do so only arose when the Applicants' further submissions were received on 20 December 2006, as originally drafted, and also as amended on 8 February 2006. Both documents were filed after the hearing concluded. An approach in relation to this matter was apparently made to the Applicants' solicitors very shortly after receipt of the submissions dated 20 December 2006. The Applicants' legal representatives agreed that there was no delay on the Respondent's part in seeking to raise the issue. As there was a failure to reach agreement on this matter these notices of motion have resulted. Applicants' case 9 The Applicants' counsel conceded that the transcript reflects the position which pertained in Lalic but argued that there is no evidence of this unless I allow the transcript in as evidence. For numerous reasons including that his client's case is prejudiced if I do allow the material in I should not do so.

10 It was argued on the basis of numerous authorities that the RTA had to provide an explanation as to why it had failed to raise this issue in the course of the hearing and that having elected not to do so it should not be allowed to reopen its case now.

11 It was argued the need to raise this issue was due to the RTA's Addendum filed on the last day of the hearing at par 56 which refers to [51] of Lalic. Finding 12 These have been long and complex proceedings in which the issue of the need to adjust the value of the subject land due to the influence of the M7 was referred to in the valuers' joint report. The Applicants argued that because this issue was raised at the hearing that the Respondent should not be granted permission to rely on this evidence now.

13 Lalic concerned the compulsory acquisition of land on the same day and for the same purpose very close to that in the proceedings before me. A number of similar issues to those before me were determined in it. One of the primary sales considered in Lalic is also relied on by the same valuers in this case.

14 I have been referred to a number of cases which have considered applications to reopen cases after judgment has been delivered which have emphasised that this should be done only in very limited circumstances. In Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 the Defendant sought to reopen its case because of a mistake on the part of its counsel. The Court of Appeal unanimously held at 475 that a case may be reopened where the evidence is clearly relevant to, and may have a significant impact on, the issues in the case. 15 In Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 the High Court unanimously held at 70 that it had the power to vacate a perfected order but that "if such power exists, it must be exercised with great caution". It further held at 71 that a party is bound by the conduct of his or her case, and that only in the most exceptional circumstances should a new argument be allowed to be raised after the case had been decided. This was referred to by the majority of the High Court in Coulton v Holcombe (1986) 162 CLR 1 at 8, and upheld at 11. In De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207, the Director-General applied to vacate a costs order before a judgement was perfected but after it had been handed down. The majority of the High Court held at 215 that the Court can reopen its judgments or orders if there is some matter calling for review or where it is in the interests of justice to do so, but further held at 223 that a Court should be reluctant to do so where the party seeking relief to reopen has not done all it could to raise the point at a more appropriate time. 16 Finally, in Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of New South Wales [2005] NSWLEC 419, where an application was made to reopen the case ten months after judgment was handed down, this Court held that leave to reopen should not be granted where a deliberate decision was made during the hearing to exclude the evidence. Where there was no previous impediment to bringing in the evidence, and where no explanation for the delay has been offered, the Court should not allow the matter to be reopened. The application to reopen in that case was refused.

17 These are Class 3 proceedings where the rules of evidence do not apply. The primary consideration I need to take into account is what is fair in the circumstances given that it is also important for the Court to be informed about all relevant matters (see Land and Environment Court Act 1979 s 38(2)). 18 The circumstances here are also different to those in the cases identified above and I do not consider they are directly applicable to the circumstances here. I have yet to deliver judgment in this matter, the issue has come before the Court promptly, the admission of the transcript about which leave is sought concerns a matter well known to the Applicants' lawyers and valuer and was admitted by them as correct in submissions. I agree with the RTA's submissions that the statements in the Applicants' correction of its own submissions at par 44 and 49 as set out above tell only half the story in relation to Lalic. The clarification of the evidence sought to be made by the RTA is appropriate. 19 Until the Applicants' Response to the Respondent's addendum dated 20 December 2005 were received I do not consider that the RTA would have been aware that there was any dispute about whether it could rely on the fact that in Lalic there was agreement between the same valuers as in this case that the level of adjustment for the M7 was 7%. I do not consider this is a case where the RTA elected to run its case a certain way and now seeks to reopen its case in order to better present it.

20 If leave is needed to rely on the transcript from other proceedings I grant it. Costs 21 The RTA has sought its costs of this motion, which application is opposed by the Applicants. The Applicants' counsel argued that because the RTA was seeking a dispensation or favour from the Court it should not get its costs even if successful, because the general rule is that a party seeking such a dispensation must pay the other party's costs resulting from the Court assessing the application. The Applicants relied on Dal Pont Law of Costs at par 14.36. That text makes clear that each case must be considered on its own facts.

22 I am granting the application made by the RTA in circumstances where it is the conduct of the Applicants which has really necessitated the need for the RTA to make its application. I consider the Applicants have taken a pedantic approach to a matter which clearly should have been agreed between the parties. It is unfortunate the matter had to come to court at all. The RTA should have its costs of the application.

Orders 23 The Court makes the following orders:

1. Leave is granted to rely on the one page of transcript being p 21 from Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430 of proceedings on 19 April 1995.
2. Leave is granted to make the supplementary submission in reply to the Applicants' Response to the Respondent's Addendum to Respondent's Outline of Submissions as amended by the Applicants' Correction of its response dated 8 February 2006 that "The Lalic judgment does not contain detailed calculation of a 7% adjustment for the M7 because that adjustment was common ground and accepted by the Court as such."
3. The Applicants are to pay the Respondent's costs of this motion.

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